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State v Sam [2003] PGNC 9; N2521 (3 February 2003)

N2521

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 100 OF 2001

THE STATE

-V-

EDDIE SAM

KOKOPO: LENALIA, J.
2003, 2004: 16, 17, 18, 19 Dec. 3 Feb

CRIMINAL LAW – Rape nine charges – Alternative charges of incest – Not guilty pleas – Trial – Criminal Code ss. 347 or 223, Ch. No. 262.

CRIMINAL LAW – Trial – Evidence – Credibility and Corroboration – Sexual offences – Corroboration not required in law – Danger convicting on uncorroborated evidence – Need to advert to warming in reasons for judgment.

CRIMINAL LAW – Particular offences – Rape and incest cases – Sexual offences – No evidence of penetration – Evidence of carnal knowledge must come from victim or an eye witness and be corroborated. Victim not called to give evidence. The State -v- Sugueri Sipi [1987] PNGLR 357 distinguished.

CRIMINAL LAW – Particular offence – Evidence – Proof of offences – Absence of formal proof of essential ingredient of offence – Inferences – Inferences of guilt unsafe where evidence in sexual offences is uncorroborated in some material particular.

CRIMINAL LAW – Particular offence – Where no evidence by victim – Admissions by accused in Record of Interview – More convincing evidence than seeing an accused naked near a victim – Finding of guilt.

CASES CITED:

The State -v- Sugueri Sipi [1987] PNGLR 357
The State -v- Andrew ToVue [1981] PNGLR 8
Peter Townsend -v- George Oika [1981] PNGLR 12
Fred Eiserman -v- Nanatsi [1978] PNGLR 457
The State -v- Wally Kason, CR. No. 1481 of 1996
The State -v- Bonny Yaka Benson N1549 of 1996
Paulus Pawa -v- The State [1981] PNGLR 498
Allan Oa Koroka -v- The State and Mariano Wani
Simon -v- The State [1988-89] PNGLR 131

The State -v- Tom Morris [1981] PNGLR 495.

Counsels:
L. Rangan, for the State
M. Peter, for the Accused

Feb. 3rd 2004

LENALIA, J. The accused pleaded not guilty to nine counts of rape and nine alternative charges of incest allegedly committed upon the victim Theresia Sam between 1998 and 2000 in Rabaul. The charges are brought contrary to ss. 347 and 223 (1) of the Criminal Code.

Quite unusually, the victim was not called to give evidence, nor even her statement tendered. I say "unusually" because this case was one of the cases directed by Hon. Justice Jalina in October 2003 to be given prior to by the State. The matter was listed to 19th of November last year, was vacated because the State was not ready. Usually when a matter has been directed to be tried on the date set, it must proceed. When the matter was called at 9 am on 16th of December, the State further applied for adjournment until 1:30 pm that day expecting the victim and other witnesses to turn up. By 1:30 pm that day, the matter proceeded by trial.

Evidence relied on by the State are the record of interview, the medical report and a statements by the Investigating officer Constable Noah Awagia and that of his corroborator Constable Tom Baul. Only Constable Noah Awagia was called to testify to verify and confirm his statement. He conducted the record of interview with the accused on 4th of September 2000 at the Kokopo Police Station in the Sexual Offences Squad office. Constable Awagia said when he was asking the accused the question he asked in the record of interview, the accused answered them freely by saying "yes" to all questions put to him suggesting he either raped or had carnal knowledge of Theresia Sam well knowing her to be her daughter.

On the medical documentary evidence, the victim was examined on 30th August, 2000 at the Nonga Base General Hospital. In examination of the victim, Dr. Winuan observed that, she was well and not ashamed and not even worried. He found no scratches or bruises on the victim’s body. As for the vaginal examination, he found that the hymen at been torn to an angle at "3 o. lock position". No laboratory analysis was done because according to the doctor, the incident of rape was reported a week after it took place. The doctor confirmed that penetration had actually taken place. This piece of evidence was not challenged by the defence and the Court accepted it as part of the State’s case, see Ex. "A".

The record of interview (see Ex. "B") is full with admission made by the accused to the investigating officer and his corroborators. This record of interview was not even challenged by the defence. I particularly note on pages 2 & 3 of that document the following questions and answers were given.

Q.20. It has come to our notice that on a Friday in July, 1998 at about 5:30 pm you have forced Theresia Sam into having sexual intercourse with her. What have you to say to that?

A: That was true.

Q.21: Miss Theresia mentioned that you forced her into the toilet and there you ordered her to undress and lie onto the floor, and then you ordered her to open her legs and you had sexual intercourse with her. What have you to say to that?

A: Yes, that was true.

Q.24: The second time you had sexual intercourse with her, you got her room’s spare key from her mother’s bilum and opened her room and went into her room. When in the room you woke her up and had sexual intercourse with her; she pleaded for you to leave her alone, but you ignored her. What have you to say to that?

A: I say yes to that.

Q.25: How many times did you have sex with her?

A: I am not sure.

Q.26: She mentioned that you had sex with her nine times in 1998 and the tenth time this year. What have you to say to that?

A: I am not sure.

Q.27: When was the last time you had sex with Miss Theresia?

A: About 5 weeks ago and the she ran away from the house.

Q.28: On a Thursday, 17th of August, 2000 at about 9:00 am, you forced Theresia Into admitting that she slept or had sex with her bubu, and that with the false accusation, you took the advantage to force her into having sexual intercourse with her. What have you say to that?

A: Yes, that was true".

The statement by First Constable Tom Baul (see Ex. "D") the corroborator in the record of interview was tendered and is much similar to that of Constable Noah Awagia. In his statement Constable Tom Baul says that questions after questions were asked and the accused answered all questions without being forced, assaulted, threatened or being induced or promised anything into giving all information recorded in the record of interview.

At the end of the prosecution case, Mr. Peter of counsel for the accused made a submission of "no case to answer". His submission was based on both the first and second legs of the principles stated in the case of The State -v- Paul Kundi Rape [1976] PNGLR 96. Mr. Peter’s submission is based on the proposition that since the victim was not called to give evidence, there is therefore no evidence of penetration. The defence counsel further argued that, this Court should not rely on admissions by the accused as the victim was not called to confirm lack of consent.

In answer to the no case submission, Mr. Rangan of counsel for the State referred the Court to a number of authorities. First, counsel cited the case of The State -v- Bonny Yaka Benson N1549 of 1996 on which Passingan, AJ (as he then was) found the accused guilty on the charge of rape without having called the victim to testify in Court. In that case there were five State witnesses including the doctor. Their evidence corroborated well suggesting that rape actually took place in Room No. 227 at the Gate Way Hotel in Moresby. His Honour there cited the case of The State -v- Sugueri Sipi [1987] PNGLR 357 where, King, AJ, accepted direct evidence from the mother who saw the victim and the accused naked with the accused having an erection.

Mr. Rangan further cited the National Court case of The State -v- Wally Kason CR. No. 1481 of 1996 where the accused was convicted upon evidence tendered including the record of interview where the accused made admissions in the record of interview and later, the issue of unfairness was raised without any evidence to support the accused suggestion of unfairness and the answer the accused made in the interview was from the accused own mouth. I am also thankful to the State’s counsel for citing the case of Eiserman -v- Nanatsi [1978] PNGLR 457. That case was one of knowingly harbouring prohibited immigrants contrary to s. 27 (2) of the Migration Act. Wilson, J. (as he then was) held that in absence of proof of an essential ingredient of an offence, cannot be cued by admissions made by an accused. I shall return to this in my discussion a little later.

On 19th of December 2003, I made a ruling that there was a case for the accused to answer and called upon the defence to give evidence and his witnesses if he so wished.

Only the accused was called to give evidence. He denied all the nine charges of rape and the alternative charges of incest. He said the reason why he admitted to the interviewing officer in the record of interview was due to him being under pressure. Asked in chief as to what was the nature of such pressure, the accused said that whenever he had an argument with his wife always ended up in fights and secondly, that he had had marriage problems with his wife for a long time. On this second allegation the accused said whenever he goes out fishing at night his wife used to go around with boyfriends.

There are two issues involved. First, should the Court accept the uncorroborated evidence of admissions made by the accused in the record of interview? Secondly, being sexual offences and in absence of any oral testimony by the victim, should this Court draw inferences of guilt from evidence tendered.

There are now two conflicting views on whether or not the Court should or should not accept admissions by the accused made to the police investigating, officer. All authorities cited to this Court by counsels are all National Court cases and they do not bind this Court. The first view was taken in The State -v- Bonny Yaka Benson (supra) where His Honour Passingan, AJ. adopted the decision in The State -v- Sugueri Sipi (supra). I distinguish the instant case from the case of Sugueri Sipi since in Sepi’s case, the accused was observed by the mother of the victim to be naked and had obviously having an erection standing near the victim also naked. In The State -v- Wally Kason, (supra) it was an armed robbery and Los, J. found that, how could the accused, deny what he had admitted to by the accused’s own mouth in the record of interview.

The second conflicting view to the above is the view taken in the case of Eiserman -v- Nanotsi (supra). This was an appeal from the District Court in Vanimo, which found the Appellant guilty of knowingly harbouring prohibited immigrants. He was sentenced to six months imprisonment. On appeal, it was held that on absence of proof of an essential ingredients, of an offence cannot be cured by an admission by the accused. Wilson, J. in the Eiserman case followed and applied the principle stated in the common law case of Surijpaul -v- R [1958] 3 All E.R. 300 where the Privy Council said that failure by the prosecution to prove an essential element of an offence cannot be cured by an admission. In that same case the Court also said that, a person can confess to his own acts, knowledge and intention but cannot confess to the acts of other persons which he has not seen and of which he can only know by hearsay.

The indictment before this Court contains nine charges of rape and nine alternative charges of incest. They are all sexual offences. Being sexual in nature, the Court now warns itself of the dangers involved in convicting the accused on the uncorroborated evidence not by the victim but the evidence of admissions made by the accused from his own mouth. The warnings contained in cases such as McCallum -v- Buibui [1975] PNGLR 439, The State -v- Andrew ToVue [1981] PNGLR 8, Peter Townsend -v- George Oika [1981] PNGLR 12 says that an accused should not be convicted upon uncorroborated evidence of the complainant alone unless such evidence is corroborated in some "material particular" by evidence from other independent source. These warnings were repeated by the Supreme Court in the case of Deidei -v- The State [1990] PNGLR 458.

Neither the case of The State -v- Wally Kason nor that of The State -v- Bonny Yaka Benson discuss the issue of inferences to be drawn from a set of facts from the primary finding of facts from all evidence. Mr. Peter in submission had urged this Court not to draw any inferences of guilt from admissions made by the accused in the record of interview. I rule that submissions out as I am entitled to draw inferences and it is a question of fact for the judge to decide which or what inferences should be drawn. The law on circumstantial evidence is clear and well settled in a number of leading cases. In The State -v- Tom Morris [1980] PNGLR 493, the Court there said in a case where there are a number of competing inferences, it is a question of fact for a judge to decide which or what inferences should be drawn, which should be rejected, which of them are reasonable and which are mere conjunctures. Then at the end of the trial where there are inferences inconsistent with the guilt of an accused, there is always the discretion to acquit.

But in order for this Court to be satisfied beyond reasonable doubt of the guilt of the accused it is not only that the guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable the Court to draw. If there was, any reasonable inferences in the case before me, it must rest upon something more than mere conjuncture. Paulus Pawa -v- The State [1981] PNGLR 498 and Allan Oa Koroka -v- The State and Mariano Wani Simon -v- The State [1988-89] PNGLR 131.

In the case before me, there is in my view no circumstantial evidence. The record of interview tendered contains admissions which came out from the accused’s own mouth. The record of interview was not challenged on the basis of unfairness and in question 39, the following question was put to the accused:

"Q39: During the Record of Interview, did I or other Police members forced you, assaulted you, threatened you or induced you into giving information in regard to the incident that had happened?"

The accused answer was, "No", simply "No" and when asked to say anything further in answer to the suggested charges pursuant to ss. 216, 223 and 347 of the Code, the accused answer was simply "No". He was further asked in question 37 of the record of interview, if he could read through the record of interview the accused gave the following answers:

"A. It’s alright, I won’t read through it".

Then the interviewing officer suggested the following question to the accused in question 38 and note the answer given by the accused.

"Q38: I can read it to you if you don’t want to read the contents yourself".

The answer to the above suggestion was the following:

"ANS. Forget it. Everything said were true and I don’t have anything more".

There is no slight suggestion whatsoever that the accused was forced, assaulted, threatened or induced into giving the information he gave to the police during the conduct of the record of interview. The defence has not come out clearly on their defence on the proposition of the accused having some family problems and secondly on the issue of the accused’s wife having affairs with her boy friends. If that was the case, why not raise these issues with the Police Investigating officer. There is no record of such defences in the record of interview. As I find these are recent concoctions.

Quite obviously, the defence has not established that the accused did not say what he had said in the record of interview. Unlike the case of Wally Kason where the record of interview was challenged on the basis of unfairness and prejudicial answers given in the record of interview, the instant case involves the issue of whether this Court should accept the record of interview and it’s contents where the accused had made prejudicial admissions adverse to his innocence as he now claims to be.

One of the fundamental rights guaranteed by the Constitution in s. 37 (4)(a) is that, anyone charged with an offence is presumed to be innocent until he or she is proved to be guilty in accordance with the law. This presumption of innocence is the foundation of the legal system we have adopted and it throws the onus on the prosecution to prove all ingredient elements of each case. That is "proof beyond reasonable doubt", the criminal standard of proof as is now known. I am unable therefore to agree with the decision in the case of Eiserman -v- Nanatsi (supra) on the proposition that "absence of an essential ingredient of an offence cannot be cured by an admission by the accused". In my opinion, that can only be applicable to a case "where that ingredient is not an act of, or within the knowledge of the accused". In contrast to the instant case, the essential elements both in relation to the charges of rape and incest were within the mind of the accused as established by the quotes from the record of interview which I have referred to earlier. The relationship between the accused and the victim is not challenged and the accused when committing these offences knew that the victim is his daughter.

The Criminal Code is not silent on the issue on charges of incest. For s. 582 (b) of the Code, it says:

"(b) the accused person shall, until the contrary is proved, be presumed to have had knowledge at the time of the alleged offence of the relationship existing between the woman or girl on whose person or by whom the offence is alleged to have been committed and the person charged, or the person with whom the offence is alleged to have been committed, as the case may be".

From the evidence I have accepted, I am unable to determine the issue of lack of consent because the period during which sexual intercourse was carried out between the accused and his daughter existed from 1998 to 2000. That was a long time indeed and although force or lack of consent is suggest in questions 21 and 22 and their answers, the inability of the victim to give evidence concerning lack of consent affects the charges of rape. The Court finds the accused guilty on the alternative charges of incest pursuant to s. 223 of the Criminal Code.

SENTENCE

9th February 2004

LENALIA, J. The prisoner was initially charged with nine counts of rape and nine alternative charges of incest contrary to sections 347 and 223 (1) of the Criminal Code. A trial was conducted and due to lack of evidence on the issue of consent on the rape charges, the prisoner was found guilty on the nine alternative charges of incest of his daughter Theresia Sam. The time period during which the prisoner committed these offences dates back to 1998 up until the year 2000. That was quite a long time indeed. The new Criminal Code (Sexual Offences and Crimes Against Children) Act No. 27 of 2002 does not apply to these crimes committed by the prisoner.

For purposes of sentencing the prisoner, I do not wish to repeat what I have said in my judgement on trial following which the prisoner was found guilty except to say that, these offences were committed over a long period of time. Within that period, the accused had sexual intercourse of his daughter nine times. The evidence shows that the victim is the accused blood-daughter. Incestuous acts between father and daughter or mother and son and brother and sister is very serious as it has been described to be "a gross betrayal of the most sacred relationship of the father and daughter": The State -v- Mitige Neheya [1988-89] PNGLR 174.

Incest and any other sexual offences committed upon a minor or even grown up persons by a father mother, brother or other relatives is a breach of trust of the most severe kind. Young children are abused and sexually molested by parents and other relatives which activities are protected by law. By the evidence which came out from the prisoner’s own mouth, you repeatedly had carnal knowledge of your daughter. It is evident from the old incest provision that, the legislature wanted to safeguard an important institution in the community being the family unit as it saw the sacredness and the value of the relationship between the actors of these heinous crimes so that people who are engaged in such shameful and animalistic behaviours must face the consequences of being sent to gaol for life. The victim of these crimes is now married but the pains and hurts caused to her by her own father will linger around with her for the rest of her life.

The serious nature of this crime of incest has been seriously, addressed by both the National and Supreme Court judges. Acting Justice Brunton said at page 177 of the case earlier cited that incest with a child is an aggravation of the severe type. This is how His Honour put it.

"An incestuous act with a child is a circumstance of aggravation of the most severe kind. It is a gross betrayal of the most sacred relationship of father and daughter. When young girls are the victims, it is difficult to imagine that the girls will not be scared emotionally, perhaps for life".

Mitige Neheya appealed to the Supreme Court against his sentence of 7 years. The Supreme Court rejected the appeal and upheld the sentence of 7 years imposed on him by the National Court. In that case, the Supreme Court further said that, where incest is committed with force or any manner of intimidation would be tantamount to rape and under such circumstances, it would be valid to apply the sentencing guidelines applicable in rape cases: see John Aubuku -v- The State [1987] PNGLR 267.

In Grayson Andewa -v- The State (1998) SC. No. 576, 1998, the Supreme Court said an interesting feature of incestuous relationship between father and daughter and other actors is that, such relationships often repeat themselves if not quickly detected and discouraged. And if they are not detected quickly they will lead to many. This in my view was the position in the prisoner’s case. The incestuous acts commenced in 1998 and continued until 2000. Evidence by the prisoner shows that since year, 2000 his wife had deserted him to Manus. I supposed the victim may have left about the same time too.

In this Province, the crime of incest and sexual offences committed between the fathers and daughters and other very close relative is on the increase. It reflects two factors amongst many others. First, there is no respect for the human dignity of those minors who have been affected in these unfortunate situations. Secondly, it reveals that fathers and mothers and other blood relatives who commit such grievous sins against their children are obviously sick in the mind and they cannot be allowed access to our ordered communities.

A further consideration to be taken into account on sentences is that, the victim was physically and sexually abused for over a long time. This shows that the accused had a determined mind to continue to have sexual intercourse with the victim. This in my view is an aggravation by itself and it is fortunate that the victim did not get pregnant. This fact must be considered on sentence as well. Certainly this Court takes account of the accused’s previous good character with no records of previous convictions.

Mr. Peter of counsel for the accused submitted on address that the Court should consider imposing concurrent sentences. The principle of law in relation to concurrent and consecutive sentences say that when consecutive sentences are imposed a final review of the total sentences should be made by the sentencing judge to make sure that the final sentence is not excessive: the Public Prosecutor -v- Terrance Kaveku [1977] PNGLR 110. I am also required to consider what ought to be the appropriate sentence for each charge and then decide whether they should be made concurrent or consecutive. After this, because the prisoner committed a series of crimes, I must then decide whether to make two or more sentences cumulative. I must then look at the total to see if it would be just and appropriate to the circumstances of these cases: Mase -v- The State [1991] PNGLR 88.

In the circumstances of the offences committed by the prisoner, they cannot be taken lightly and be compared with a congeries of offences committed in the prosecution of a single purpose or where offences rise out of the same or closely related facts. Tremellan -v- The Queen [1973] PNGLR 116. I take the accused nine cases of incestuous acts as separate crimes. While saying that, I am also reminded that the imposition of a multiplicity of short sentences adding up to a substantial sentence in respect of a number of similar offences which will eventually form a series of convictions was disapproved by the pre-Independent Supreme Court in the case of The Secretary for Law -v- Suares [1974] PNGLR 288.

The series of incestuous acts by the accused upon his daughter, ought to be treated as separate offences although of the same nature. I am in agreement with the principle of consecutive sentences that where offences are different in character, or in relation to different victims the sentences should be made cumulative. Public Prosecutor -v- Sydney Kerua and Billy Kerua [1985] PNGLR 85. The offences before me are although similar in nature but involved the same victim were quite separate acts of sexual intercourse which in my view warrant cumulative and concurrent sentences: see Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205.

On sentence, I have taken into consideration all the cases I have cited in this judgment on the principles of sentencing on concurrent and consecutive sentence. I have also taken into account the few mitigations raised by counsel in favour of the accused and on the other hand I must consider the serious nature of these crimes. The sentence of this court is as follows:

Count 1: The prisoner is convicted and sentenced to a term of 9 years imprisonment IHL.

Count 2: Convicted and sentenced to 7 years imprisonment IHL. Concurrent upon Count 1.

Count 3: Convicted and sentenced to 6 years IHL. To be served consecutively upon Count 2. (15 years.)

Count 4: Convicted and sentenced to 8 years imprisonment IHL. To be served concurrently upon the sentence of Count 3.

Count 5: convicted and sentence to 6 years imprisonment IHL. To be served concurrently upon the sentence for Count 4. (15 years).

Count 6: Convicted and sentence to 2 years imprisonment IHL. To be served consecutively upon Count 5. (17 years).

Count 7: Convicted and sentenced to 5 years imprisonment IHL.

To be served concurrently upon sentence for count 6 (17 years).

Count 8: Convicted and sentenced to 6 years imprisonment IHL. To be served concurrently upon Count 7. (17 years).

Count 9: Convicted and sentenced to 4 years imprisonment IHL. To be served concurrently upon the sentence for Count 8 (17 years).

The Court orders 7 years suspension of that sentence and the prisoner shall serve the balance. The time spent in custody shall be deducted with his bail monies to be refunded to him.
_________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor